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Sunday Morning News

Election 2000: Legal Teams for Bush and Gore Prepare for U.S. Supreme Court Hearing

Aired December 10, 2000 - 7:00 a.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

MILES O'BRIEN, CNN ANCHOR: Lawyers for Al Gore and George W. Bush working overtime once again, preparing to make oral arguments Monday before the U.S. Supreme Court on Florida's ballot count.

KYRA PHILLIPS, CNN ANCHOR: They will, or they will have until 4 o'clock Eastern this afternoon to file the briefs and here's where things stand after a busy Saturday of legal action.

The 11th U.S. Circuit Court of Appeals in Atlanta rejected an emergency motion by Bush to stop the hand counts, but moments later, the U.S. Supreme Court, on a 5-4 vote, ordered a stop to the Florida hand tabulations.

O'BRIEN: The high court also scheduled oral arguments for Monday morning at 11:00 Eastern Time.

PHILLIPS: Before the hand count began yesterday, George W. Bush's unofficial lead in Florida was adjusted from the certified lead of 537 votes to only 193 votes, and that's because Gore picked up votes Friday when the state Supreme Court ordered the results of manual recounts in Palm Beach and Miami-Dade Counties added to the tally.

After that, it was a day of ups and downs for both the Bush and Gore campaigns.

CNN's David Mattingly takes us on the legal roller coaster ride.

(BEGIN VIDEOTAPE)

DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): Fifty-eight counties, more than 42,000 ballots and now a circuit court plan, count them all by 2:00 P.M. Sunday.

UNIDENTIFIED MALE: Repeat after me...

MATTINGLY: In the meantime, confusion and criticism.

GOV. GEORGE PATAKI (R), NEW YORK: I think the decision of the four justices of the Florida Supreme Court is outrageous. It has no basis in Florida law.

SEN. BARBARA BOXER (D), CALIFORNIA: It may be, after all is said and done, that George Bush won fair and square. You know what? If he does, that's good. If Al Gore loses fair and square, it's fine. And, of course, my preference is Al Gore wins fair and square. But what we want is fairness.

MATTINGLY: 9:52 A.M., counting begins of ballots from Miami-Dade County. Eight judges sworn in to examine 9,000 ballots. Machine sorting underway to sift out uncounted ballots or under votes from Leon County, to be counted later by hand. The same in Duval County. But computer problems mean hand counting may not begin until 9:00 P.M.

President Clinton watching from Washington.

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: If this whole process leads people to believe that every reasonable effort is being made to get an accurate count, then I think that will help the incoming president.

MATTINGLY: Later, the Florida Supreme Court denies a Bush request to stop the recount pending a decision from the U.S. Supreme Court. But both candidates out of the public eye, Bush at his ranch in Texas, Gore in Washington, on early afternoon conference calls shoring up Democratic support.

REP. DICK GEPHARDT (D-MO), MINORITY LEADER: Respect the courts, count the votes and if you don't like the decision, appeal it to a higher court. But don't engage in attack politics against the judicial branch of our great democracy.

MATTINGLY: Criticism of the recounting split down party lines. But who has the advantage -- 25,699 recountable ballots in counties that favor Bush, just 17,733 in counties that favor Gore.

DOUG HATTAWAY, GORE CAMPAIGN SPOKESMAN: We think they should stop filing their lawsuits, stop trying to disrupt the process. This couldn't be more fair.

MATTINGLY: Miami-Dade County picks up to 1,000 ballots an hour, most ballots surprisingly listed as non-votes. And all eyes constantly on the federal courts. A Bush emergency request to stop the recount pending at the U.S. Supreme Court essential, according to documents, to protect the integrity of the electoral process. Gore attorneys reply, saying a halt in the recount would delay ultimate resolution of the election contest.

2:30 P.M., the 11th Circuit Court of Appeals in Atlanta denies the Bush attempt to halt the recount, but orders the state of Florida not to certify the results until the U.S. Supreme Court decides whether or not to hear the case.

UNIDENTIFIED CORRESPONDENT: Very big news, the U.S. Supreme Court has...

MATTINGLY: Then, minutes later, a surprising development in Washington.

UNIDENTIFIED CORRESPONDENT: Quoting from an order that just came out, they are staying pending further order of the court.

MATTINGLY: The U.S. Supreme Court orders the Florida hand recounts to stop, a 90 minute hearing scheduled for 11:00 Monday morning.

JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: It changes from day to day. It's one day you're up, one day you're down. It's taken a lot of twists and turns. But it's very, very gratifying to us, I know to Governor Bush and to all of us, that the United States Supreme Court has now, for the second time, indicated a willingness and an interest in hearing this very, very important case and this very, very important federal issue.

RON KLAIN, GORE CAMPAIGN ATTORNEY: We're obviously disappointed in the Supreme Court's decision to grant a stay against the manual recounts here in Florida. We believe that the progress made in the count thus far indicated that we were clearly on a path for Vice President Gore and Senator Lieberman to make up the difference and to pull ahead, had the count been fully completed.

MATTINGLY: Now, the clock weighs in more heavily than ever before. Florida's 25 electors must be chosen by Tuesday. The Florida legislature set Monday to take matters into its own hands while the high court deliberates.

David Mattingly, CNN, Atlanta.

(END VIDEOTAPE)

O'BRIEN: So tomorrow, the focus of the presidential election shifts to the U.S. Supreme Court. The nine justices will hear oral arguments on the Bush campaign request to stop the under vote count in Florida. We have two reports now.

CNN's Charles Bierbauer is covering developments at the U.S. Supreme Court and CNN's Susan Candiotti at the Florida Supreme Court in Tallahassee.

Charles, let's begin with you. Why didn't the court -- just reading the tea leaves here because obviously we get involved in a little bit of speculation here -- why didn't the court simply allow the recounting to continue and schedule a hearing for Monday? Why did the recounting stop based on what you saw in that ruling?

CHARLES BIERBAUER, CNN CORRESPONDENT: Well, the recounting stopped, Miles, because by a 5-4 count, the justices ordered it to stop and the rationale being that to go ahead and have a count that might, perhaps, be later reversed, according to Justice Antonin Scalia, who took the unusual measure of adding his own personal thoughts to this order yesterday, said that it would be more detrimental to the process to have a count and then roll it back.

There was disagreement, to be sure, and Justice John Paul Stevens, perhaps speaking for the four in the minority, said it's better to keep on counting rather than not finish. So that's the simple answer to it, they're divided, just like most of the country is, but the 5-4 majority prevailed and so the count has stopped and while we're waiting for the sun to come up here this morning, we're really waiting for the court to convene tomorrow and try and bring this to a finish -- Miles.

O'BRIEN: How unusual is it, Justice Scalia in the opinion indicated that there's a substantial probability of success for the Bush effort here. How unusual is it for the Justices to tip their hand that way?

BIERBAUER: It's most unusual. This is an order, not an opinion, but what he is saying and what the rationale, the legal basis for them taking this case is that the plaintiff, Mr. Bush in this instance, had to indicate that he believed there was a reasonable chance of prevailing. If there is no reasonable chance, there is not much reason to hold the arguments in the first place.

That is a tip off. That does suggest where the fault line in this court lies, bearing in mind that last week when they did rule and sent the matter back to the Florida Supreme Court, it was a unanimous order from the court, but it did not address the merits of the arguments. Now we see much more clearly where that fault line lies.

But I would also add that five Justices wanting to hear the case does not necessarily, does not, indeed, mean that there are five justices necessarily going to rule in Mr. Bush's favor.

O'BRIEN: Let's turn it down to Tallahassee. Susan, a lot of, I guess you could say a fair amount of criticism of the Florida Supreme Court for not laying out specific guidelines for how to interpret these so-called under votes. You know, is there anything at this juncture that the state Supreme Court could do to clarify? They're pretty much out of the mix now, aren't they?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Well, there has been a lot of criticism of this court regarding that. However, the supervisor of elections here and others who were observing the count yesterday continue to maintain that they have consistently followed the standard they believe was clearly set forth by the Florida Supreme Court to do their best to try to determine the voter's intent by looking at a ballot in its totality. And that is what the participants of yesterday's count have done.

Now, this Florida Supreme Court, as you recall, Miles, still has a one, one of many things outstanding here and one of that is the response requested by the U.S. Supreme Court to clarify its position as to why the seven Justices extended the deadline for Florida's manual recount. We don't know when that clarification will be completed. A court spokesperson says he simply doesn't know yet.

O'BRIEN: Is it possible that there will be a separate, additional hearing at the Supreme Court subsequent to that coming forth or will that somehow be incorporated in what we hear on Monday or is that something that is going to come much later in the game? CANDIOTTI: Well, we don't anticipate a hearing surrounding that issue because the Florida Supreme Court already asked for and received briefs on that issue from the parties that are involved. So at this point, we're simply waiting for a clarification and there are different opinions as to when that might be forthcoming, whether it's before the Supreme Court issues its decision on extending the stay or making it permanent or whether it will wait, whether it will do it before that.

O'BRIEN: Charles, just to take it back to you briefly, the Constitution invests in the states a lot of latitude when it comes to serving up electors for the executive branch. What is the federal issue which the Supreme Court is homing in on here?

BIERBAUER: The federal issue as presented to the Supreme Court by George W. Bush's attorneys is that the Florida court is out of line, that the power to decide how electors are chosen is vested in the state legislature and not in the courts. And so Mr. Bush presents to the court here the argument that the Florida state Supreme Court is making the rules and changing them after the election, which the Constitution and federal election law would certainly seem to prohibit, that they're creating new rules and that finally, that they are violating the equal protection clauses of the Constitution by saying count some votes and not others.

That's always been the contention that the Bush campaign has made, and, of course, to get it on this court's docket, you've got to have that kind of a federal issue where this court could, if it chooses to, say to the Florida Supreme Court, you've gone too far, that this is not in your bailiwick. You've got to refer back to what the Florida legislature has provided.

Those are the issues that we will hear discussed ardently tomorrow morning.

O'BRIEN: And, Susan, just taking it back to you briefly, mentioning the legislature there, they would probably agree with just about everything that the Supreme Court has said thus far, a lot of acrimony between the branches of government in Florida.

CANDIOTTI: That's right and that legislature, the one here, stands ready, as you know, to go into special session and to elect a different slate of Florida electors if they believe that becomes necessary.

O'BRIEN: All right, thank you very much for the legal colloquy from Tallahassee and Washington, Susan Candiotti and Charles Bierbauer, thanks much.

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